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July 1 Signals Changes for Indiana's Public Officials
Posted in Litigation

Indiana’s statute on official misconduct by a public servant will undergo substantial revisions effective July 1, 2011.  The statute currently makes it a D felony for a public servant to knowingly or intentionally perform an act the public servant was forbidden by law to perform.

It is also a D felony to perform an act the public servant is not authorized to perform, with the intent to obtain any property for himself. This was the situation in State v. Dugan. Dugan was a state excise officer who was prosecuted for official misconduct for receiving gratuities from alcohol permit holders.  The court found that such a prosecution was proper even if the statute Dugan was accused of violating was not in and of itself a criminal statute carrying criminal penalties.

Changes effective in July delete these two provisions and make it a D felony to knowingly or intentionally commit an offense in the performance of the public servant’s official duties. Theoretically, under the old statute, a public servant who is driving could be given a ticket for speeding, like any other citizen, and charged with a D felony. However, under the new statute, the hope is that such a result would be eliminated if the speeding did not occur in the performance of the public servant’s official duties.

It seems the changes were intended to narrow the old, and quite broad, statute as interpreted in Dugan. The language in the statute prior to July 1 provided prosecutors with significant discretion in pursuing violations.  While the newly rewritten statute is still quite broad and covers a broad range of activities, some hope that it will eliminate the broad interpretation that makes it a crime to commit an offense that itself is not criminal.  However, the full impact of the changes will not be known until courts have opportunity to give new meaning to the statute. 

If you have questions about Indiana’s official misconduct statute or other litigation issues, please contact the Litigation Practice Group at Bingham Greenebaum Doll.

  • Partner

    Meaghan describes herself as an “unapologetic advocate” who will be upfront and honest with clients and thoroughly prepared on the law and facts of her cases.  She focuses her practice on corporate governance disputes, breaches ...

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